F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAR 27 2001
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 00-3061
 v.
                                                (D.C. No. 99-10086-01-MLB)
                                                     (District of Kansas)
 SH-PONE A. HARRIS,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BRORBY, McKAY and LUCERO, Circuit Judges.



      On November 15, 1999, Sh-Pone A. Harris pleaded guilty to the offense of

being an accessory after the fact in violation of 18 U.S.C. § 3. In exchange for

his plea, the government agreed to recommend that Harris receive a two point

reduction in the offense level for acceptance of responsibility and to file a motion

for a downward departure from the Sentencing Guidelines pursuant to U.S.S.G.

§ 5K1.1 for substantial assistance.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This Court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      At sentencing, the court considered two guilty pleas, now expunged,

entered by Harris in Oklahoma. The court rejected Harris’s motion that

considering the expunged pleas was improper under the Sentencing Guidelines,

noting that even if he had ruled in Harris’s favor, Harris would have been in the

same criminal history category for purposes of sentencing. Harris was ultimately

sentenced by the district court to serve a total prison term of thirty months.

      Proceeding under Tenth Circuit Rule 46.4, Harris’s counsel has filed an

Anders brief characterizing the issue raised on appeal as frivolous and requesting

to withdraw his representation.    See Anders v. California , 

, 744

(1967) (“[I]f counsel finds his case to be wholly frivolous, after a conscientious

examination of it, he should so advise the court and request permission to

withdraw. That request must, however, be accompanied by a brief referring to

anything in the record that might arguably support the appeal.”). Because we

agree with counsel’s characterization of the argument on appeal and because he

has met the requirements of Rule 46.4, we grant counsel’s motion to withdraw

and affirm appellant’s sentence.

      Before us, Harris argues only that the trial court incorrectly considered his

two expunged guilty pleas when applying the Sentencing Guidelines. Section

4A1.2(j) of the Guidelines provides that “[s]entences for expunged convictions

are not counted” in computing a defendant’s criminal history category. However,


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the Guidelines do not define the term “expunged.”     See United States v. Hines ,

, 1362 (10th Cir. 1998). We review the district court’s application

of the Sentencing Guidelines de novo.    United States v. Fisher , 

,

1328 (10th Cir. 1997) (citation omitted).

       In Hines , we considered the issue of when a conviction is “expunged” for

purposes of the Sentencing 

–63. We concluded that

“a state’s use of the term ‘expunge’ is not controlling in determining whether a

conviction is properly included in calculating a defendant’s criminal history

category. Instead, sentencing courts are to examine the grounds upon which a

defendant was pardoned or his sentence was set aside or expunged.”      

Quoting our earlier decision in   United States v. Cox , 

, 339–40 (10th

Cir. 1996), we stated that

       Convictions reversed or vacated for reasons related to constitutional
       invalidity, innocence, or errors of law are  expunged for purposes of
       the Guidelines and therefore cannot be included in criminal history
       calculations. . . . When convictions are set aside for reasons other
       than innocence or errors of law . . . those convictions are counted for
       criminal history purposes.

Hines , 133 F.3d at 1363 (emphasis and second ellipses added   ) (citations omitted).

       Harris does not argue his convictions were expunged because of innocence

or legal error. In fact, both convictions were expunged because Harris served his

sentences. Both orders stated that Harris’s convictions were expunged because

“the Defendant has satisfactorily discharged his responsibilities required of him

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by the Oklahoma State Department of Corrections.” (R. Doc. 115, Exs. A, B.)

Accordingly, the trial court properly considered Harris’s earlier guilty pleas in

calculating his criminal history because the expungements were not based upon

innocence or legal error.

      The judgment of the district court is         AFFIRMED , and counsel’s motion to

withdraw is GRANTED .


                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




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